Patna High Court
Edisson IndiaversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
A participant who knowingly takes part in a tender process and is declared unsuccessful is estopped from challenging the tender notice or its conditions.
Summary
The petitioner, Edisson India, challenged two tenders issued by the Bihar Building Construction Department on grounds of arbitrariness, procedural impropriety, and violation of Article 14, seeking quashing of the tenders and other reliefs. The petitioner alleged exclusionary eligibility criteria, selective response to pre‑bid queries, brand‑specific specifications, and improper stamping of documents. The respondents argued that the tenders were completed, the petitioner had full knowledge of the terms, and that he was estopped from raising challenges after being declared unsuccessful. The Court held that participation in a tender process constitutes acceptance of its terms, and an unsuccessful bidder cannot later challenge the tender notice or conditions. Consequently, the writ petition was dismissed.
Issues considered
- Can an unsuccessful bidder who knowingly participated in a public tender challenge the tender notice and its eligibility criteria after being declared unsuccessful?
Subjects
- public procurement
- tender
- estoppel
- judicial review
- Article 14
- procedural fairness
- mandamus
- arbitrariness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.441 of 2026
======================================================
Edisson India, Through its proprietor of Sandeep Kumar, S/o Sri Dharampal
Yadav, Office at C-122, First Floor, Sector-10, Noida, Gautam Budh Nagar,
Uttar Pradesh- 201301, India.
... ... Petitioner
Versus
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna.
2. Principal Secretary, Building Construction Department, Government of
Bihar, Patna, Vishweshwaraiya Bhawan, Bailey Road, Patna, Bihar- 800015.
3. Arcop Associates Pvt. Ltd., through its Director, Address- A-15, Pamposh
Enclave Greater Kailash- I, New Delhi, India, 110048.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Rajesh Kumar Dubey, Advocate
For the Respondents : Mr. Government Pleader-3
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
2 22-01-2026 In the present writ petition, the petitioner has prayed
for the following relief(s):-
“(i) For that issue a writ, order, or direction in
the nature of mandamus, thereby quashing the
impugned tender notifications bearing No.
19/BCD/CONS DIV 01/2024-25 dated
21.07.2025, issued by the Building
Construction Department, Government of
Bihar, on the ground of arbitrariness,
procedural impropriety, and violation of
Article 14 of the Constitution of India;
(ii) For declare that the eligibility criteria and
Patna High Court CWJC No.441 of 2026(2) dt.22-01-2026
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technical specifications prescribed under the
aforementioned tenders are ultra vires the
principles of fair competition, transparency,
and inclusive participation, and are violative
of the statutory norms governing public
procurement;
(iii) For direct the Respondent Department to
place on record the complete set of pre-bid
queries, responses, corrigenda, and internal
communications pertaining to both tenders,
for the purpose of judicial scrutiny and
verification of procedural integrity;
(iv) For declare that the premature
commencement of work under Tender No.
07/BCD/CONS DIV 01/2025-26, in the
absence of a formally declared awardee, is
illegal, and direct the Respondent Department
to forthwith suspend all ongoing activities
under the said tender until the conclusion of
this writ petition;
(v) For that, the other relief/reliefs as your
Lordship may deem fit and proper in the
interest of justice to the petitioner.”
2. The brief facts of the present case are that the
Building Construction Department, Government of Bihar
floated Tender No.19/BCD/CONS DIV 01/2024-25 dated
13.01.2025 and Tender No.07/BCD/CONS DIV 01/2025-26
dated 21.07.2025 for execution of construction and
Patna High Court CWJC No.441 of 2026(2) dt.22-01-2026
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infrastructural works at the Outdoor Stadium, Patliputra Sports
Complex, Patna and the State Sports Academy cum
International Standard Modern Cricket Stadium at Rajgir,
District Nalanda, respectively. The petitioner had participated in
the said tender processes by submitting his bid. However, the
petitioner alleged that he was rendered non- competitive in the
said tender processes. Aggrieved by the non-selection and the
manner in which the tender process was conducted, the
petitioner has preferred the present writ petition.
3. Learned counsel for the petitioner submits that
although the petitioner participated in both tender processes in
accordance with the prescribed procedure, the entire tender
exercise was vitiated by arbitrariness, lack of transparency, and
a pre-determined approach adopted by the respondent
department. It is submitted that in respect of Tender No.
19/BCD/CONS DIV 01/2024-25 dated 13.01.2025, the
eligibility criteria were framed in an exclusionary manner,
prescribing conditions such as exceptionally high turnover
requirements, prolonged OEM presence in India, and prior
experience limited to international-level stadium projects of
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substantial value.
4. It is further submitted by the learned counsel for the
petitioner that during the pre-bid query stage, the petitioner
raised objections and sought relaxation of the restrictive
eligibility conditions. However, the respondent department
selectively addressed only certain queries while ignoring the
substantive concerns raised by the petitioner and similarly
situated bidders. It is submitted that such selective
consideration, defeats the very purpose of the pre-bid process
and amounts to procedural unfairness.
5. With regard to Tender No. 07/BCD/CONS DIV
01/2025-26 dated 21.07.2025, it is submitted that the
arbitrariness was even more apparent. The Bill of Quantity
allegedly specified particular brand names, which is contrary to
established norms of competitive and brand-neutral public
procurement. It is submitted that such brand-specific
stipulations, demonstrate a lack of competitive neutrality and
indicate a pre-determined intent.
6. Learned counsel for the petitioner further submits
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that certain pre-bid documents bore the stamp of a private entity
instead of an authorised government official, which, according
to the petitioner, raises serious concerns regarding procedural
propriety.
7. Learned counsel for the respondent submits that
Tender No. 19/BCD/CONS DIV 01/2024-25 dated 13.01.2025
has already been finalized. It is further submitted that the tender
process has been completed and the work has been awarded,
and therefore the rights of the successful bidder have already
been created. In such circumstances, the concluded tender
process cannot be reopened at the instance of an unsuccessful
bidder, especially when no timely challenge was raised.
8. It is further submitted that the petitioner was fully
aware of the eligibility criteria and all other terms and
conditions prescribed in the tender documents at the time of
submission of his bids. After having consciously accepted the
eligibility requirements and participated in both tender
processes, the petitioner cannot be permitted to question the
eligibility criteria or the procedure adopted by the department
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after being declared unsuccessful. Having participated with full
knowledge, the petitioner is estopped from challenging the
tender conditions at a later stage.
9. Learned counsel for the respondent further submits
that the tender conditions were uniformly applicable to all
bidders and that no relaxation or concession was granted
exclusively to any particular entity. The petitioner, having failed
to meet the evaluation criteria or secure selection, cannot now
be permitted to assail the tender process on grounds which were
known to him at the time of participation.
10. The limited question that arises for consideration
is whether the petitioner, after having participated in the tender
process and having been declared unsuccessful, can thereafter
challenge the tender notice and its conditions.
11. Upon perusal of the materials available on record
and submissions made on behalf of the parties, it is not in
dispute that the petitioner participated in the tender process with
full knowledge of the eligibility criteria, terms, and conditions
contained in the tender documents.
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12. Having consciously participated in the process and
taken a calculated chance, the petitioner cannot be permitted to
challenge the tender notice or the eligibility conditions after
being declared unsuccessful. Participation in the tender process
amounts to acceptance of the prescribed criteria and the
procedure adopted, and a challenge raised only after an
unfavourable outcome is legally untenable. Entertaining such a
challenge would amount to allowing an unsuccessful bidder to
reopen a concluded tender process, which is impermissible in
law.
13. The aforesaid view is supported by the settled
legal principles laid down by the Hon’ble Supreme Court and
various High Courts, wherein it has consistently been held that a
participant who knowingly takes part in a selection or tender
process is estopped from challenging the same after being
unsuccessful. At this juncture, it is pertinent to take note of the
decision rendered by the Hon’ble Supreme Court in Jagdish
Mandal v. State of Orissa & Ors., reported in (2007) 14 SCC
517, wherein the Court observed as under:
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“19. … Attempts by unsuccessful tenderers with
imaginary grievances, wounded pride and business
rivalry, to make mountains out of molehills of some
technical/procedural violation or some prejudice to
self, and persuade courts to interfere by exercising
power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour
to thousands and millions and may increase the
project cost manifold. ...”
14. Further, the Hon’ble Supreme Court in Meerut
Development Authority v. Association of Management Studies
& Ors., reported in (2009) 6 SCC 171, while explaining the
scope of judicial review in tender matters, observed as follows:
“What is the nature of rights of a bidder
participating in the tender process?
26. A tender is an offer. It is something which
invites and is communicated to notify
acceptance. Broadly stated it must be
unconditional; must be in the proper form, the
person by whom tender is made must be able to
and willing to perform his obligations. The
terms of the invitation to tender cannot be open
to judicial scrutiny because the invitation to
tender is in the realm of contract. However, a
limited judicial review may be available in cases
where it is established that the terms of the
invitation to tender were so tailor made to suit
the convenience of any particular person with a
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view to eliminate all others from participating in
the biding process.
27. The bidders participating in the tender
process have no other right except the right to
equality and fair treatment in the matter of
evaluation of competitive bids offered by
interested persons in response to notice inviting
tenders in a transparent manner and free from
hidden agenda. One cannot challenge the terms
and conditions of the tender except on the above
stated ground, the reason being the terms of the
invitation to tender are in the realm of the
contract. No bidder is entitled as a matter of
right to insist the Authority inviting tenders to
enter into further negotiations unless the terms
and conditions of notice so provided for such
negotiations.”
15. In view of the aforesaid discussion and the settled
legal position, this Court finds that the issue framed for
consideration deserves to be answered in the negative. The
petitioner, having knowingly participated in the tender process
and having been declared unsuccessful, cannot thereafter be
permitted to challenge the tender notice or the conditions
thereof.
16. Accordingly, the present writ application stands
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dismissed.
17. Pending application(s), if any, shall stand disposed
of.
(Sudhir Singh, J.)
(Ritesh Kumar, J.)
Gaurav Kumar,
Krishnakant/-
U
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